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Sunday, 10 July 2016

Relevancy of online academic writing in passing of Judgment

At this stage, I must briefly note the reason for making theseadditional demands on the Plaintiffs, especially given that there is along history of broad-based John Doe orders in the past. I myselfhave passed some of those orders. But this in itself is no reason tocontinue with a trend that seems to me if not downright dangerous,at least one that requires the introduction of some caution andcircumspection. I have noticed some criticism of such orders onvarious legal sites and journals particularly as to their width, ambitand tendency to last for a long time without sufficient judicialoversight in the interregnum.1 Criticism should always be welcome;studied and measured criticism set out with rancour or invective,even more so. This, after all, is the discourse of law, and I see noreason why orders and judgments should stand outside thisdiscourse. The source of the criticism is surely immaterial, and thefact that the criticism is on a website or portal is not itself reason toview it with either suspicion or disdain. There is a vast body ofsound academic writing online. If the law is to progress, an1 Udta Punjab: Of Courts, Cuts, Copyrights and Conflicted Counsels; - byProf. Shamnad Basheer, LiveLaw.in; http://bit.ly/29kRyrj; Udta Punjab:An IP Controversy [Part I], by Vasundhara Majithia, Spicy IP.com;http://bit.ly/28NwcVJ

engagement with such criticism is essential. I do not suggest, ofcourse, that any court or decision-making authority or body shouldbe over-sensitive; the nature of the task demands a thick hide. Nordo I suggest that every barb and jibe deserves a response or theindulgence of scarce time and resources. However, where there is apoint well-taken, it surely at least merits some thought. We should, Ibelieve, be remiss in the performance of our public duty if we wereto ignore a valid critique. Every system must have a process of selfcorrectionwhere one is needed; nothing is written in stone. In thepresent case, the point being made is that the entrenched format ofthe John Doe orders was far too broad and admitted of little or noscrutiny. They had the potential of shutting down entire websitesand blocking all content, even legitimate content. As I said lastFriday, such orders proceeded on the implicit assumption that theentirety of the content of all these cited websites was illicit; that noverification was necessary; that the illicit content had beenestablished to the satisfaction of the Court; and possibly that theentirety of the content of these sites related only to the immediatecomplaint at hand. It is, on reflection, impossible to justify any ofthese. There are, I think, at play here far larger issues, including ofan unattended and unsupervised and judicially mandated policing ofthe Internet.IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONNOTICE OF MOTION (L) NO. 1940 OF 2016INSUIT (L) NO. 694 OF 2016Balaji Motion Pictures Ltd. & Anr. …PlaintiffsVersusBharat Sanchar Nigam Ltd. & Ors. …Defendants

CORAM: G.S. PATEL, JDATED: 4th July 2016

2. This matter was moved in urgency on Friday, 1st July 2016.On that day I passed an order setting out why I was unprepared togrant the injunction in the terms that were then placed before me. Ifound the reliefs to be overbroad. They were directed against toentire websites. I left it open to the Plaintiffs to renew thatapplication after placing on an Affidavit additional and more preciseinformation and data about offending links that point to illicitdownloads of the film in question, Great Grand Masti. This film’sscheduled release is 22nd July 2016.

3. Mr. Dhond renews the application today. He does so on thebasis of an Additional Affidavit dated 4th July 2016 affirmed by oneMr. Ayan Roy Chowdhury, the Plaintiffs’ general counsel. ThisAffidavit sets out considerably more detail. I propose to considersome of the material of this Affidavit. To begin with, the Affidavitpoints out that someone named of Wasim Akram Ansari posted amessage to Twitter on 29th July 2016 reporting the leak of GreatGrand Masti. A copy of this Twitter post is at page 6 to this Affidavit(it is also annexed to the Plaint). The post appears to have a screenshot of a scene from the film. In the bottom right hand corner of thatscreenshot is a a clearly imprinted legend: “censor copy”. On thatvery day, the Plaintiffs were also notified by the film’s actors about apossible, and entirely illegal, leak of this film. As the presentAffidavit itself says, there are two possibilities: either the entire filmwas leaked or someone obtained an image of that solitary scene. Buteven the second scenario posits that any person who took such ascreen shot would, at a minimum, have have had to have access tothe film. That access is clearly unauthorised. But this was allpreviously available material, and it did not, on its own, form asufficient basis for the injunction.4. Mr. Dhond then points out that there are now otherscreenshots at pages 60 to 62, Exhibit “C”, to the present Affidavitof messages from other Twitter users. These Twitterati seem tohave obtained multiple screenshots of the film. The second andthird messages report a leak of the film. What is curious is the firstmessage at page 60. This says that the second half of this film is“Supebb”. Even allowing for the linguistic damage caused by thismedium, there can be no mistake about what the message conveys.

It extols the films, and it extols a specific portion of it. That wouldbe impossible without a viewing. Any such viewing outside thecertification board is illicit.5. It is in this context, and following my previous order, that thePlaintiffs have now over the weekend engaged the services of twoprofessional anti-piracy agencies, viz., Aiplex Software PrivateLimited and Markscan, with a mandate to analyse potentiallyinfringing web-based links to illicit downloads of the films. Bothagencies deployed some software and web-based technology,including web crawlers. They identified a list of potential URLs ondifferent web pages that, prima facie, point to specific illicitdownloads of the film.6. Paragraph 14 of the Affidavit makes an assertion on oath thatthe period between 29th June and 2nd July saw a sharp surge innumber of infringing links and URLs. The Affidavit also says thatclips of the film were uploaded to YouTube on 3rd July 2016. ThePlaintiffs’ complained and sent out take down notices throughMarkscan and Aiplex. Those clips have now been removed.7. The Plaintiffs say that they have not been able to locate theculprits, but they have approached the Cyber Police Station, BandraKurla Complex, Mumbai. Paragraph 17 and 18 of this Affidavit setout the potential loss and damage likely to be caused to thePlaintiffs.

8. In fairness, when I pointed out that the cast of the prayers inthe Motion is much too wide and relates to entire websites, Mr.Dhond agreed to amend these. He now places a draft amendment tothe Motion. This is taken on record and marked “X” foridentification. Leave to amend forthwith, without need ofreverification. The amendment introduces prayer a(iv). The cast ofthis prayer is more accurate. It is directed to individual infringingURLs or weblinks. I will set out the wording of the prayer shortly.9. At this stage, I must briefly note the reason for making theseadditional demands on the Plaintiffs, especially given that there is along history of broad-based John Doe orders in the past. I myselfhave passed some of those orders. But this in itself is no reason tocontinue with a trend that seems to me if not downright dangerous,at least one that requires the introduction of some caution andcircumspection. I have noticed some criticism of such orders onvarious legal sites and journals particularly as to their width, ambitand tendency to last for a long time without sufficient judicialoversight in the interregnum.1 Criticism should always be welcome;studied and measured criticism set out with rancour or invective,even more so. This, after all, is the discourse of law, and I see noreason why orders and judgments should stand outside thisdiscourse. The source of the criticism is surely immaterial, and thefact that the criticism is on a website or portal is not itself reason toview it with either suspicion or disdain. There is a vast body ofsound academic writing online. If the law is to progress, an1 Udta Punjab: Of Courts, Cuts, Copyrights and Conflicted Counsels; - byProf. Shamnad Basheer, LiveLaw.in; http://bit.ly/29kRyrj; Udta Punjab:An IP Controversy [Part I], by Vasundhara Majithia, Spicy IP.com;http://bit.ly/28NwcVJ

engagement with such criticism is essential. I do not suggest, ofcourse, that any court or decision-making authority or body shouldbe over-sensitive; the nature of the task demands a thick hide. Nordo I suggest that every barb and jibe deserves a response or theindulgence of scarce time and resources. However, where there is apoint well-taken, it surely at least merits some thought. We should, Ibelieve, be remiss in the performance of our public duty if we wereto ignore a valid critique. Every system must have a process of selfcorrectionwhere one is needed; nothing is written in stone. In thepresent case, the point being made is that the entrenched format ofthe John Doe orders was far too broad and admitted of little or noscrutiny. They had the potential of shutting down entire websitesand blocking all content, even legitimate content. As I said lastFriday, such orders proceeded on the implicit assumption that theentirety of the content of all these cited websites was illicit; that noverification was necessary; that the illicit content had beenestablished to the satisfaction of the Court; and possibly that theentirety of the content of these sites related only to the immediatecomplaint at hand. It is, on reflection, impossible to justify any ofthese. There are, I think, at play here far larger issues, including ofan unattended and unsupervised and judicially mandated policing ofthe Internet.10. These are among the reasons I asked the Plaintiffs in this caseto give me more specifics on Affidavit, and to supply me with morecogent material as the basis of the order. The fact that thisinformation has been obtained with such apparent ease leads me tobelieve that the criticism is in fact well-founded. We just neversought it earlier. I do so now.

11. Having read the new Affidavit, I am satisfied that thePlaintiffs have met the threshold criteria. I must also commend Mr.Dhond for so readily accepting that the frame of the prayers wasmuch too wide and for suggesting a perfectly acceptable alternativeby way of the present amendment.12. Finally, I turn to Exhibit “D” to this Affidavit. This is atabulation on a larger fold-out sheet of some 482 individual links.This analysis has been carried out by the two agencies mentionedearlier. The links are not to websites but point to individualdownload links of the film in question. Some of these links have thename of the film and the year (2016) as part of the URL. Thestatement on Affidavit is that these are suspected or potentiallyinfringing links. Some of these have been checked. The last columnof this chart has a column called ‘status’. Some of the links have thestatus “approved”. I am informed by Mr. Sushant on behalf of thePlaintiffs, who is present in Court, that this means that the Plaintiffsapproached Google, which in turn has, after verification, removedall search results that display these links. Not all these links havebeen “approved”. Many are yet pending review. The Affidavit itselfin paragraph 13 references this chart and the fact that this has beenprepared by these two agencies commissioned by the Plaintiffs.13. As to the prima facie case, I believe Mr. Dhond has made thisout sufficiently with references to the posts to which I have referred.14. I am satisfied that this is sufficient material for the grant ofthe narrowed relief that Mr. Dhond now seeks. There will,

therefore, be an ad-interim injunction in terms of prayer clause a(iv),which reads as follows:“(a)iv. Grant an order of temporary injunction directingthe Defendants to take measures to blockaccess to the 482 urls/web links at page 63 ofthe Additional Affidavit dated 4th July 2016and/or other active urls/weblinks which containor purport to contain, an infringing or illicit copyof the said Film “Great Grand Masti” or partthereof, upon the Plaintiffs or their authorisedrepresentatives, providing details of suchinfringing urls/ web links to the Defendants orupon the Senior Inspector of the Cyber PoliceStation, Bandra Kurla Complex notifying theDefendants about the same;”15. I am making it clear that the Plaintiffs will be at liberty tomove against all or any of those 482 URLs if they are found to beactive. In other words, it is not expected that these links should beactive today at the time when this order is passed.16. In addition, the Plaintiffs will be at liberty, without furtherreference to Court, but only during the time when this order isoperative, to approach the Cyber Crime Cell with any other weblinkor URL pointing to an individual download. Before the Cyber CrimeCell the Plaintiffs will place such material as it has obtainedverifying that download. Of course, the Cyber Crime Cell is alsoexpected to carry out an independent assessment before actingfurther in the matter.

17. As regards intermediaries and cable/DTH operators, therewill be an injunction restraining them from making any broadcast ormaking available any form of download of this film without aspecific written authorisation from the Plaintiffs.18. The Plaintiffs will comply with the provisions of OrderXXXIX Rule 3 of the Code of Civil Procedure, 1908 in respect of thenamed Defendants within a period of one week from today. ThePlaintiffs will also be at liberty to issue a public notice setting out thesubstance of this order. This will be a sufficient service on the JohnDoe Defendants.19. Liberty to any of the named Defendants to apply for avariation, modification or recall of this order after four clear workingdays' notice to the Advocates for the Plaintiffs.20. This injunction will operate till 4th October 2016.21. List the Notice of Motion on the supplementary board forfurther ad-interim reliefs on 3rd October 2016.22. All concerned to act on an authenticated copy of this order.(G. S. PATEL, J.)